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TMI Blog2008 (9) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Sales Tax Act. If the seized documents have been retained by the authority legally and lawfully, as has been already held by the court, the position emanating from such seized documents need not have been furnished to the petitioner along with the notice dated November 8, 2002. Any such action demanded by the petitioner would be to virtually nullify the seizure and retention of the documents belonging to the petitioner. The petitioner would be entitled to the said verification report as well as the seized documents only once he produced the books of accounts, as required to do by the notice dated November 8, 2002. W.P. dismissed. - Writ Petition (Civil) No. 423 of 2002 - - - Dated:- 30-9-2008 - RANJAN GOGOI, J. RANJAN GOGOI J. The petitioner who is the sole proprietor of M/s. Eastern Drugs and Chemicals has challenged the seizure of certain documents pertaining to his business effected under the provisions of section 44(3) of the Assam General Sales Tax Act, 1993 (hereinafter referred to as, the Sales Tax Act ). The retention of the seized documents beyond the period prescribed by the proviso to section 44(3) of the Sales Tax Act as well as a notice date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized documents. The petitioner has further averred that in reply to the notice dated November 8, 2001 he had sent a communication dated December 3, 2001 requesting release of the seized documents to enable him to prepare the final accounts and also on the ground that the seized documents are required by him in connection with his day to day business. Alternatively, the petitioner prayed for photostat copies of the seized documents. The said letter dated December 3, 2001 of the petitioner was followed by another letter dated December 5, 2001 requesting the jurisdictional Superintendent of Taxes to adjourn the case to another date on the ground of absence of the proprietor of the firm. A further request for release of the seized documents was made by the petitioner on December 12, 2001. No action having been forthcoming for release of the seized documents this writ petition was filed on 18th of January, 2002 wherein an interim order dated January 23, 2002 was passed by the court suspending further proceedings pursuant to the notice dated November 8, 2001 of the Superintendent of Taxes, Unit A, Guwahati. In the writ petition filed the petitioner has contended that the seizure mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to require compliance with the provisions of the Code of Criminal Procedure. The respondents have further submitted that approval of the Commissioner for retention of the seized documents beyond 120 days was accorded by order dated 11th of February, 2002, a copy of which has been enclosed to the counter-affidavit of the respondents. Insofar as the notice dated November 8, 2001 is concerned, according to the respondents, the books of accounts which the petitioner was required to produce before the authority were required to be prepared by the petitioner much before the date of seizure of the documents, i.e., July 31, 2001 and, therefore, it was not reasonable on the part of the petitioner to require return of the seized documents for preparation of such books of accounts. It is the further contention of the respondents that if the seized documents are to be returned as insisted upon by the petitioner, the same would enable the petitioner to rectify the anomalies detected by suitably preparing the books of accounts. Having noticed the pleaded case of the parties before the court the arguments advanced by the learned counsels for the respective parties may now be taken note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions are not similar to those contained in section 44(3) of the Sales Tax Act. Sri Dubey has further pointed out that in Commissioner of Income-tax v. Oriental Rubber Works [1984] 145 ITR 477 (SC) interference with the retention of the seized documents beyond the statutory period was made on the ground of non-communication of the same to the assessee. According to Sri Dubey, such non-communication had an adverse effect on the right of the assessee to object to such action before the Central Board of Direct Taxes as provided by sub-sections (10) and (12) of section 132 of the Income-tax Act. No such provisions are to be found in the Sales Tax Act, according to Sri Dubey. Pointing out the language appearing in the proviso to section 44(3) of the Sales Tax Act and section 132(8) of the Income-tax Act Sri Dubey has urged that the negative covenant contained in section 132(8) of the Income-tax Act and the absence thereof in the proviso to section 44(3) of the Sales Tax Act would be suggestive of the fact that retention of the seized documents beyond 120 days would not, per se, be illegal under section 44(3) of the Sales Tax Act. In this regard, Sri Dubey has also referred to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or documents are retained by any authority other than the Commissioner for more than one hundred twenty days, the reasons for so doing shall be recorded in writing and the approval of the Commissioner shall be obtained by the authority so retaining them. S. 132. (8) The books of account or other documents seized under sub-section (1) or sub-section (1A) shall not be retained by the authorised officer for a period exceeding thirty days from the date of the order of assessment under section 153A or clause (C) of section 158BC unless the reasons for retaining the same are recorded by him in writing and the approval of the Chief Commissioner, Commissioner, Director-General or Director for such retention is obtained: Provided that the Chief Commissioner, Commissioner, DirectorGeneral or Director shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income-tax Act, 1922 (11 of 1922), or this Act in respect of the years for which the books of account or other documents are relevant are completed. (10) If a person legally entitled to the books of account or other documents seized u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if the seized books of account, registers and documents are retained for more than 120 days, the reasons for doing so shall be recorded in writing and the approval of the Commissioner shall be obtained by the authority retaining the same. On a plain reading of the proviso to section 44(3), retention beyond 120 days would appear to be permissible but with the approval of the Commissioner if the officer retaining the seized documents is any authority other than the Commissioner. In contrast, the provisions of section 132(8) of the Income-tax Act contemplates that the seized books of account and documents shall not be retrained for a period extending 180 days, unless the approval of the authority mentioned in sub-section (8) for such reten tion is obtained. Section 132(8) of the Income-tax Act imposes a bar on retention of the seized documents beyond 180 days which bar gets lifted once approval is obtained for any extended retention. In view of the bar imposed, which can only be overcome by grant of approval, such approval necessarily has to be prior approval, i.e., granted prior to expiry of the period of 180 days. However, the proviso to section 44(3) does not impose any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;previous permission' was necessary. . . The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away by us. That is not the way to interpret statutes. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision may not be disregarded. In our view, the Parliament deliberately avoided the qualifying word 'previous' in section 29(1) so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission to non-resident companies to purchase shares in Indian companies. . . . The Foreign Exchange Regulation Act is, therefore, clearly a statute enacted in the national economic interest. When construing statutes enacted in the national interest, we have necessarily to take the broad factual situations contemplated by the Act and interpret its provisions so as to advance and not to thwart the particular national interest whose advanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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